S.B.K., ETC. VS. HARVEST OF HOPE (L-8102-11, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the

parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3060-15T3

S.B.K. (formerly R.B.),

an infant by his Guardian

Ad Litem, BARBARA KLEIN,

Plaintiff-Appellant

v.

HARVEST OF HOPE,

Defendant-Respondent,

and

THE STATE OF NEW JERSEY DIVISION

OF YOUTH AND FAMILY SERVICES ("DYFS"),

STATE OF NEW JERSEY DEPARTMENT OF

CHILDREN AND FAMILIES CASE MANAGER

WORKER DIANE SMITH, in her official

and personal capacity, CASEWORKER M.

OLMO, in his/her official and personal

capacity, CASEWORKER CURTIS CARTER,

in his official and personal capacity,

CASEWORKER CURTIS CARTER, in his official

and personal capacity, CASEWORKER LISA

MARIE FINNEGAN, in her official and

personal capacity CASEWORKER M. BAENA,

in his/her official and personal capacity,

SUPERVISOR B. BLAKELY, in his/her official

and personal capacity, SUPERVISOR JOE

GORMAN, in his official and personal

capacity, SUPERVISOR H. TORRES-MEJIAS,

in his/her official and personal capacity,

GLADYS WITT, NICK JONES, CLAUDIA S.,

SHARON S. and GLADYS H.,

Defendants.

__________________________________

Argued November 1, 2017 – Decided August 14, 2018

Before Judges Fuentes, Manahan and Suter.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No. L-8102-

11.

Brian A. Heyesey argued the cause for

appellant (Szaferman, Lakind, Blumstein &

Blader, PC, attorneys; Janine G. Bauer, of

counsel and on the brief; Brian A. Heyesey,

on the brief).

Anthony P. Pasquarelli argued the cause for

respondent (Sweet Pasquarelli, PC, attorneys;

Anthony P. Pasquarelli, of counsel; Kenneth

C. Ho, on the brief).

PER CURIAM

On October 5, 2011, twelve-year-old plaintiff S.B.K.,1

through his mother and guardian ad litem Barbara Klein, filed a

multi-count civil action against defendants alleging he suffered

physical and psychological harm when he was placed in the physical

custody and care of these defendants. On March 11, 2016, the Law

Division entered judgment approving the settlement of plaintiff's

claims against all defendants, except the Harvest of Hope Family

1

We use initials and pseudonyms where appropriate to protect the

minor's privacy and to preserve the confidentiality of records

related to Family Part matters. R. 1:38-3(d).

2 A-3060-15T3

Services Network, Inc. (Harvest of Hope). On November 19, 2014,

Harvest of Hope moved for summary judgment, arguing it was entitled

to immunity under the Charitable Immunity Act (CIA), N.J.S.A.

2A:53A-7 to -11. On January 23, 2015, the court heard oral

argument from counsel, granted defendant's summary judgment motion

and dismissed plaintiff's cause of action with prejudice.

In this appeal, plaintiff argues the motion judge erred in

finding Harvest of Hope is entitled to the protections afforded

to charitable entities under the CIA. We agree and reverse. After

reviewing the record developed before the Law Division, we conclude

the motion judge improperly determined that Harvest of Hope was

organized exclusively for charitable purposes without analyzing

its source of funds or accurately determining whether it relieves

the State of a burden it would otherwise have to perform.

In order to properly analyze the legal issues raised by the

parties, we must first provide a brief historical context to the

discussion.

I

On May 3, 1999, the Legislature enacted the Fost-Adopt

Demonstration Program for Boarder Babies and Children (Fost-Adopt

Demonstration Program). The program reflected the Legislature's

recognition of New Jersey's "serious problem" concerning "infants

and young children living in hospitals beyond medical necessity,"

3 A-3060-15T3

i.e., "boarder babies". The Legislature recognized the need to

"immediately address this serious problem and ensure that . . .

'boarder babies' and 'boarder children' in our State's hospitals

are appropriately placed in homes as quickly as possible so . . .

they can receive the care and nurturing that all infants and young

children need . . . ." As part of the program, the Legislature

charged the Director of the Division of Youth and Family Services"

or "DYFS"2 (Division) with the following tasks:

[(1)] Development of fost-adopt families from

already approved foster or adoptive homes or

[homes] recruited specifically for this

program;

[(2)] Commitment by a fost-adopt family to

accept an infant or child on a foster care

basis but agree to adopt the infant or child

if the infant or child becomes available for

adoption;

[(3)] Establishment of criteria to determine

which infants and children can be placed in

fost-adopt homes;

[(4)] Provision of intensified services to the

biological parent[s] to effect family

reunification;

[(5)] Provision of intensive services to the

adoptive parents; and

[(6)] Development of concurrence within the

legal community, including family court

2

Effective June 29, 2012, the Division of Youth and Family

Services is now known as the Division of Child Protection and

Permanency. See L.A. v. N.J. Div. of Youth and Family Servs., 217

N.J. 311, 318 n.1 (2014).

4 A-3060-15T3

judges, law guardians[,] and deputy attorney

generals regarding aggressive, time-limited

permanency planning which would lead to

guardianship litigation and adoption

finalization.

As part of its implementation of the Fost-Adopt Demonstration

Program, the Division met with representatives of the First Baptist

Community Development Corporation (FBCDC), a nonprofit

organization dedicated to improving the community surrounding the

First Baptist Church of Lincoln Gardens in Somerset, New Jersey.

As a result of these discussions, the FBCDC submitted a contract

proposal dated March 25, 1998. The goal of the proposal was for

FBCDC to stabilize families and revitalize the community between

New Brunswick and Franklin Township.

Section 2.2 of the proposal was entitled "The Harvest of Hope

Foster Care Initiative." In this section, the FBCDC explained

that it created the Harvest of Hope "Program" to assist the

Division in addressing Essex County's boarder baby crisis. The

FBCDC described the Harvest of Hope Program as a "Christian Family

Services Network." Its "approach" would be "to identify foster

parents through networking with churches in the [S]tate of New

Jersey." At the time of the proposal, the FBCDC had contacted

forty-one churches, nine of whom agreed to join the Harvest of

Hope Program's network.

5 A-3060-15T3

In different sections and subsections throughout the

proposal, the FBCDC identified the following as the Harvest of

Hope Program's "objectives[,]" "initiatives[,]" and "goals":

4.21 Eliminate the "boarder baby" problem

within the State of New Jersey through the

provision of temporary foster homes supported

through a statewide church based network[;]

4.22 Increase the availability of Foster

Homes for infants and their siblings through

diligent recruitment, training[,] and a timely

approval process[;]

4.23 Process [twenty-five] new infant/sibling

inquiries per month received from [the

Division][;]

4.24 Provide train-the-trainer instruction

for people interested in training in the areas

of foster care, infant care, and volunteer

support[;]

4.25 Expedite placement of babies into

permanent homes using effective planning and

networking[;]

. . . .

4.31 Organize, train[,] and manage a

coordinated voluntary network as a church

based resource for recruitment, assessment,

training[,] and approval of Foster Homes[;]

4.32 Assist [the Division] in the handling of

inquiries;

4.33 Assist [the Division] in the training,

home study[,] and approval process of foster

homes[;]

6 A-3060-15T3

4.34 Effect the retention of recruited Foster

Homes by providing a viable and nurturing

family support system[;]

4.35 Maintain continuity with [Division]

policies, practices[,] and support through

designated liaison functions and [Division]

personnel assigned to work with and through

this program[;]

. . . .

Incorporat[e] programs and networks that

support the infant while [the Division]

attempts to provide a plan of action for the

infant prior to birth[;]

Establish[] a rapport with the [Division]

caseworker and the mother that has been

identified by [the Division] as having an

active file and is in need of outreach

services and support[;]

Focus[] on preventive measures and diversion

of families and newborns away from the child

protective system[;]

Develop[] . . . new foster care resources[;]

Improv[e] the coordination and interagency

collaboration and home-based peer services

without the use of extended residential

services[;]

Lessen[] the number of infants in the Essex

County area who, after birth, become boarder

babies[;]

. . . .

Recruit and train candidate foster families

so as to secure [forty] approved, nurturing[,]

7 A-3060-15T3

and professionally trained Foster homes over

a twelve-month time period . . . [;][3]

. . . .

Process [twenty-five] inquiries from [the

Division] each month during calendar year

1998[;]

Facilitate a [ninety-percent] acceptance rate

of placement in a [Division] approved home

within one month of approval[;]

Achieve a[n] [eighty-percent] program

retention rate for [thirty] homes approved

during the contract year[;]

. . . .

Expand Christian Family Network to include

[twelve] additional churches[;]

. . . .

Conduct monthly Orientation and Training

sessions for Foster parents and volunteers[;]

. . . .

Establish a formal Foster Family Retention

Program aimed at achieving a [seventy-five

percent] program retention rate[;]

. . . .

Conduct a minimum of [two] recruitment events

each month in 1998.

3

The contract proposal states that "[t]hese homes will be

approved by [the Division] as [Division] foster homes and will be

invited to become participating members of the Harvest of Hope

Christian Family Services Network."

8 A-3060-15T3

According to the FBCDC, through these objectives, the Harvest

of Hope Program would "work[] diligently with [the Division] to

place . . . infants into loving, Christian homes." The FBCDC

identified its Christian approach to family stabilization as one

of its ten "success factors."

The proposed contract required the Division to assign two

"Liaison Specialist[s]" to provide the FBCDC with "technical

assistance" regarding foster home approvals and placements. All

referrals to foster homes recruited by the Harvest of Hope Program

would be submitted through one or both of these Division liaisons.

Ultimately, all foster homes would be "approved by [the Division]"

and would be "subject to [Division] re-evaluation procedures."

The FBCDC's Harvest of Hope Program was incorporated as an

independent nonprofit organization on December 29, 2000. As of

that date, the organization's official name is "Harvest of Hope

Family Services Network, Inc." The appellate record contains a

"Standard Language Title XX Purchase of Service Contract"

purportedly entered into by Harvest of Hope and the Division.

However, it is unclear whether the parties formally agreed to the

terms stated therein. Harvest of Hope's objectives under this

contract are nearly identical to those described in the FBCDC's

March 25, 1998 contract proposal. Harvest of Hope agreed to assign

9 A-3060-15T3

an outreach representative to conduct monthly visits/inspections

of each foster parent in its network.

According to its tax returns, Harvest of Hope received

$882,552 in total revenue during the 2001 tax-year. The State of

New Jersey provided $835,797 of this funding. Harvest of Hope

described the remaining $46,755 as "[d]irect public support[.]"

The record reveals, however, that $43,051 of Harvest of Hope's

"[d]irect public support" was actually provided by the FBCDC as a

"[p]rogram [s]ervice [e]xpense." The ostensible private

"charitable contributions" amounted to approximately 0.4 percent

of Harvest of Hope's total revenue for the 2001 tax-year.

Harvest of Hope's 2002 tax return reveals a similar trend.

In 2002, Harvest of Hope received $1,099,683 in total revenue. It

reported that $1,095,758 of these funds came from the State of New

Jersey, and $3,925 came from "[d]irect public support[.]"

Accordingly, private charitable contributions amounted to

approximately 0.3 percent of Harvest of Hope's total revenue for

the 2002 tax-year.

II

Plaintiff S.B.K. was born prematurely at St. Elizabeth

Hospital the same year the Legislature established the Fost-Adopt

Demonstration Program. Both plaintiff and his biological mother

S.B. tested positive for cocaine immediately following plaintiff's

10 A-3060-15T3

birth. Plaintiff was treated for Respiratory Distress Syndrome,

neonatal anemia, upper lobe pneumonia, sepsis, and atopic

dermatitis. As required by N.J.S.A. 9:6-8.10, a social worker at

the Hospital reported the infant's addiction to the Division. A

summary report of the Division's investigation shows plaintiff's

biological mother had been previously hospitalized "due to a

domestic violence situation."

At the time of plaintiff's birth, S.B. had four other

children, all of whom resided in North Carolina. One of the

children was in foster care; the three others had been placed with

relatives. S.B. identified R.F. as plaintiff's biological father.

This was subsequently confirmed in a paternity test. Division

caseworker Mariela Baena recommended that the Division "establish

supervision" of plaintiff. Shortly thereafter, the Division filed

an Order to Show Cause (OTSC) and Verified Complaint in the Family

Part seeking physical and legal custody of plaintiff. The court

granted the Division's OTSC and set the matter down for a hearing

on May 20, 1999.

On June 25, 1999, plaintiff was discharged from St. Elizabeth

Hospital and placed "in a Harvest Hope . . . foster home with

[defendant,] Gladys [Witt]." The Division's Bureau of Licensing

approved Witt as a foster parent and issued her a Certificate of

Approval on June 22, 1999. Witt's approval as a foster parent by

11 A-3060-15T3

the Division was based on her compliance with Harvest of Hope's

training modules, the FBCDC's investigatory requirements, and a

home inspection conducted by FBCDC Outreach Specialist Debra

Reina.

In a letter dated June 6, 2000, the Division's Supervisor for

the Foster Home Certification Program informed Witt:

A recent inspection of your home by a Foster

Home Inspector from the Bureau of Licensing

demonstrates that you are in compliance with

the Manual of Requirements. As such, the

Bureau is enclosing a Certificate of Approval,

which authorizes you to operate as a foster

home until the expiration date specified on

the Certificate. [6/24/01] The Foster Home

Inspector will contact you to make an

appointment for an annual monitoring visit in

one year.

The appellate record contains an undated report filed and

signed by Division Liaison Donna Bailey concerning Witt's

suitability to operate a foster home. A section of the report is

titled: "Support needed by the applicant to assist them in

parenting a child[.]" Immediately below this section, Bailey

wrote: "This family has the support of the [Harvest of Hope] staff,

who will maintain monthly contact with the family via home visits

and special program events." On August 16, 2001, the Family Part

terminated plaintiff's biological parents' parental rights and

placed plaintiff under the Division's guardianship and control.

12 A-3060-15T3

Section 5.3 of the March 25, 1998 contract proposal required

Harvest of Hope to "conduct monthly visitation to [Witt's] foster

home to identify any unmet needs and ensure that sufficient support

[was] being provided." Outreach Specialist Patiya Freely did not

make contact with plaintiff or Witt until October 5, 2001,

approximately seven weeks after the Family Part's Guardianship

Order. On this date, Freely noted in her Contact Sheet a "pest

infestation" in Witt's apartment. Freely also wrote: "may request

an inspection of [the] home."

Additional entries in her Contact Sheet documented Freely's

failure to gain access into Witt's apartment to make an in-person

assessment of its condition. Freely's handwritten entries show

she was unable to enter the apartment in November 2001; January

2002; February 2002; and March 2002. In a December 2001 entry,

Freely noted that she was able to reach Witt on the telephone.

Freely wrote: "Ms. Witt stated she has been hospitalized 1 1/2

weeks & the FC [(foster children)] were with her mother." On

January 31, 2002, Freely sent Witt the following letter:

Dear Ms. Witt,

My name is Patiya Freely. As you may already

know, I am your Retention Specialist from

Harvest of Hope at the East Orange office. A

review of our records shows that we have not

been able to contact you recently. As an

ongoing commitment to our past and current

Harvest of Hope families, we would like to

13 A-3060-15T3

periodically be in touch with you. Please

contact me upon receipt of this letter so that

we can update our records and assess if

Harvest of Hope can be [of] any assistance or

support to your family.

However, the appellate record does not contain any evidence

that Freely made any attempt to notify the Division of her repeated

failures to make in-person contact with Witt or of Witt's health

condition. In an Institutional Abuse Investigation report dated

March 25, 2002, Division Case Practice Specialist Gail Miranda

stated:

[I]t is the expectation and policy that the

Harvest of Hope caseworker makes monthly in-

person contact with the foster parent and

children in the home. If the foster parent

is not cooperating and [cannot] be contacted,

Harvest of Hope is supposed to notify the

Metro Regional Foster Care [O]ffice

immediately.

. . . .

[I]t is also the expectation that the foster

parent is suppose[d] to contact the [various]

case managers [and inform them] of any

hospitalization or medical concerns.

An Inter-Office Communication dated September 9, 2002 between

the Division's Regional Supervisor of the Metropolitan

Institutional Abuse Unit and its Regional Support Supervisor of

the Metro Foster Care Operations documents the extent of the

injuries suffered by plaintiff from Witt's neglect and the

horrific, unsanitary conditions of her apartment:

14 A-3060-15T3

[Plaintiff] sustained a parasitic infection

(Scabies)[4] as a result of this incident. Ms.

Witt's actions were unjustified/inappropriate

in terms of maintaining an unsafe and

unsanitary environment. Ms. Witt's actions

placed [plaintiff] at unnecessary undue

serious risk of serious harm.

. . . .

The condition of the home was deplorable. The

clutter in the home prevented entrance into

the bedrooms. There was debris all over the

floor, the children's bunk bed was broke, the

crib in the home was filled with debris and

there were bottles of brandy observed in the

baby stroller. The hallway of the home also

smelled of dog feces.

. . . .

On March 21, 2002, Ms. Witt attempted to

deceive the Division representative by

identifying herself as another individual and

attempting to prevent the Division's staff

from gaining entrance into the home. During

the months of November 2001 and February 2002,

Division case managers made several attempts

to contact Ms. Witt, who failed to cooperate

with visitations requirements.

These deplorable conditions were corroborated by Witt's landlord.

Division case workers gained entry into her apartment with the

assistance of the Irvington Police Department. Plaintiff was

three years old at the time.

4

The pediatrician who examined plaintiff described scabies as

"microscopic spiders that bite or deposit their feces." The doctor

also explained that scabies is a "contagious parasitic infection

that results from an unsanitary environment."

15 A-3060-15T3

At one point, the Division discovered that Witt suffered from

kidney disease and required dialysis treatments three times per

week. She claimed that the hospital staff supervised plaintiff

while she received dialysis; she alleged that her sister had taken

care of the child during her two periods of hospitalization. When

asked why she did not contact the Division for assistance, Witt

claimed to be unaware of this option. She also said she "did not

want anyone in her home."

The Division removed plaintiff from Witt's home on March 21,

2002.5 The Division's Bureau of Licensing closed Witt's foster

home shortly before her death in May 2002. The Division later

substantiated Witt for neglect in accordance with N.J.S.A. 9:6-

8.21.

Harvest of Hope Outreach Specialist Patiya Freely was the

individual assigned to inspect Witt's foster home. When she was

interviewed by the staff of the Division's Institution Abuse

Investigation Unit on March 22, 2002, Freely "reported that she

was not aware of Ms. Witt being that ill." Freely alleged that

Witt's home was "not dirty but she did see roaches." Freely also

alleged that Witt never told Harvest of Hope about the extent of

her illness.

5

The Division took custody of the three other children who were

also residing in this apartment.

16 A-3060-15T3

III

Plaintiff, acting through his guardian ad litem, alleges that

Harvest of Hope and their individually named agents and employees

negligently, recklessly or willfully failed to carry out their

responsibilities to monitor the conditions in Witt's residence

from June 25, 1999 until March 21, 2002. Defendants' failure to

supervise Witt led to plaintiff's "abuse, maltreatment[,] and

neglect." Among plaintiff's causes of action, he alleges Harvest

of Hope's failure to properly monitor, supervise, and inspect his

foster placement violated his substantive due process rights under

the New Jersey Constitution, as well as various relevant provisions

in Title Nine and Title Thirty. He seeks compensatory and punitive

damages.

Harvest Hope moved for summary judgment based on the immunity

provided to charitable organizations under N.J.S.A. 2A:53A-7.

Harvest of Hope argued before the Law Division that it was "a

nonprofit corporation organized exclusively for charitable and

educational purposes." Harvest Hope also submitted a reply brief

claiming, for the first time, it was formed for religious purposes.

In the course of oral argument before the motion judge,

counsel for Harvest of Hope abandoned the position that it was

formed for educational purposes, conceding that plaintiff did not

benefit directly from defendant's training of potential foster

17 A-3060-15T3

parents. Despite this concession, the motion judge granted

defendant's motion for summary judgment and dismissed plaintiff's

complaint with prejudice. The judge made the following comments

in support of his ruling:

I'm going to leave the interpretations to

counsel, the Appellate Division, or anyone

else who will review the record. My reviewing

of the case law as it relates to [Parker v.

St. Stephen's Urban Dev. Corp., Inc., 243 N.J.

Super. 317 (App. Div. 1990)] and the comments

by Justice Long are [inapposite to] this

particular case. There is no fact in this

particular case that would indicate that

[Harvest of Hope] gave up [its] charitable

status as defined by the law.

In this particular case, all the functions

performed by [the Division] were continuously

performed by [the Division]. Those functions

performed by [Harvest of Hope] were not

mandated government functions. . . . I do not

find under this particular provision that

[Harvest of Hope] lost [its] charitable

status. All other elements of the immunity

have been met. The child was a beneficiary

of the placement of [Harvest of Hope]; that's

a benefit. And, it is a nonprofit corporation

designed under the statute. The motion is

granted for summary judgment to [Harvest of

Hope].

This court reviews a summary judgment ruling de novo, applying

the same standard that governs the trial courts. Templo Fuente

De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J.

189, 199 (2016) (citation omitted). A court should grant summary

judgment when "there is no genuine issue as to any material fact

18 A-3060-15T3

challenged" and the moving party is "entitled to . . . judgment

or order as a matter of law." R. 4:46-2(c). In determining

whether a genuine issue of material fact exists, this court

considers "whether the competent evidential materials presented,

when viewed in the light most favorable to the non-moving party,

. . . are sufficient to permit a rational fact finder to resolve

the alleged disputed issue in favor of the non-moving party."

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

New Jersey first recognized the doctrine of charitable

immunity in D'Amato v. Orange Mem'l Hosp., 101 N.J.L. 61 (E. & A.

1925). Its original purpose was to "avoid diverting charitable

trust funds to non-charitable purposes in order to live up to the

reasonable expectations of the benefactor." Parker, 243 N.J.

Super. at 321. As our Supreme Court later stated, "it would be

contrary to the interests of society that funds dedicated to a

charitable use be permitted to be diverted or diminished by the

payment of judgments . . . where suit is instituted by the

beneficiary of the charity." Jones v. St. Mary's Roman Catholic

Church, 7 N.J. 533, 537 (1951).6

6

Over time, the Court recognized several additional rationales

underlying the charitable immunity doctrine, including: (1)

preservation of charitable organizations and their funds; (2)

encouragement of private philanthropy; and (3) alleviation of the

government's burden to provide "beneficent services." Tonelli v.

19 A-3060-15T3

In 1958, the Court abolished charitable immunity in a trilogy

of cases that reconsidered the doctrine's merit from an injured

plaintiff's perspective. See Benton v. YMCA, 27 N.J. 67 (1958);

Collopy v. Newark Eye & Ear Infirmary, 27 N.J. 29 (1958); Dalton

v. St. Luke's Catholic Church, 27 N.J. 22 (1958). The Court

reasoned that the doctrine "[ran] counter to widespread principles

which fairly impose liability on those who wrongfully and

negligently injure others[.]" Collopy, 27 N.J. at 47.

The Legislature responded by enacting the CIA, which

"reinstat[ed] 'the common law doctrine as it had been judicially

defined by the courts of this State.'" O'Connell v. State, 171

N.J. 484, 489 (2002) (quotation omitted); see also Kuchera v.

Jersey Shore Family Health Ctr., 221 N.J. 239, 247 (2015); Bieker

v. Cmty. House of Moorestown, 169 N.J. 167, 174 (2001). In

pertinent part, N.J.S.A. 2A:53A-7 provides as follows:

No nonprofit corporation, society or

association organized exclusively for

religious, charitable or educational purposes

or its trustees, directors, officers,

employees, agents, servants or volunteers

shall, except as is hereinafter set forth, be

liable to respond in damages to any person who

shall suffer damage from the negligence of any

agent or servant of such corporation, society

or association, where such person is a

Bd. of Educ., 185 N.J. 438, 443 (2005) (citations omitted); see

also Estate of Komninos v. Bancroft Neurohealth, Inc., 417 N.J.

Super. 309, 319 (App. Div. 2010); Abdallah v. Occupational Ctr.

of Hudson Cty., Inc., 351 N.J. Super. 280, 284 (App. Div. 2002).

20 A-3060-15T3

beneficiary, to whatever degree, of the works

of such nonprofit corporation, society or

association; provided, however, that such

immunity from liability shall not extend to

any person who shall suffer damage from the

negligence of such corporation, society, or

association or of its agents or servants where

such person is one unconcerned in and

unrelated to and outside of the benefactions

of such corporation, society or association.

. . . .

Nothing in this section shall be deemed to

grant immunity to: (1) any trustee, director,

officer, employee, agent, servant or volunteer

causing damage by a willful, wanton or grossly

negligent act of commission or omission,

including sexual assault and other crimes of

a sexual nature[.]

[N.J.S.A. 2A:53A-7 (emphasis added).]

Thus, in order for charitable immunity to apply, a defendant

entity must show: "(1) [it] was formed for nonprofit purposes; (2)

[it] was organized exclusively for religious, charitable, or

educational purposes; and (3) [it] was promoting such purposes at

the time of the injury" in question, and the plaintiff was a

"beneficiary" of such purposes. Tonelli, 185 N.J. at 444–45

(quoting Hamel v. State, 321 N.J. Super. 67, 72 (App. Div. 1999)).

Because charitable immunity is an affirmative defense, Kain, 436

N.J. Super. at 479, the entity asserting its applicability bears

the burden of persuasion. Abdallah, 351 N.J. Super. at 288.

21 A-3060-15T3

A judicial determination that an entity devotes itself to a

covered purpose depends on the facts and circumstances of each

case. Estate of Komninos, 417 N.J. Super. at 319 (first citing

Bieker, 169 N.J. at 175; then citing Presbyterian Homes of Synod

v. Div. of Tax Appeals, 55 N.J. 275, 284 (1970)); see also Kuchera,

221 N.J. at 252 (citation omitted) ("Whether a nonprofit entity,

whose certificate of incorporation and by-laws provide that it is

organized exclusively for charitable, religious, educational, or

hospital purposes, actually conducts its affairs consistent with

its stated purpose often requires a fact-sensitive inquiry.");

Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333,

345 (2003) (explaining a fact-sensitive approach is "in line" with

the Supreme Court's prior treatment of charitable immunity).

An entity that proves it is organized exclusively for

educational or religious purposes automatically satisfies the

second prong of the statutory standard codified in N.J.S.A. 2A:53A-

7(a). Estate of Komninos, 417 N.J. Super. at 320. By contrast,

an entity seeking to prove it is organized for charitable purposes

must satisfy a further factual analysis, which, as described below,

includes a mandatory "source of funds" assessment. Ryan, 175 N.J.

at 346. Finally, N.J.S.A. 2A:53A-10 provides that the CIA is

22 A-3060-15T3

remedial in nature, and it shall be "liberally construed" in order

to effectuate its purposes.7

Here, plaintiff does not dispute that defendant was formed

for nonprofit purposes. Nor does he dispute that he was the

intended beneficiary of defendant's purported services at the time

he was injured. Our analysis focuses solely on whether Harvest

of Hope is organized for religious, charitable, or educational

purposes in accordance with N.J.S.A. 2A:53A-7(a), and if so,

whether Harvest of Hope's agents or employees acted with gross

negligence in accordance with N.J.S.A. 2A:53A-7(c).

An entity's nonprofit status is not dispositive of whether

it is organized for charitable purposes. Parker, 243 N.J. Super.

at 324. Similarly, the fact that an entity performs a useful

service does not necessarily means the entity engages in charitable

activity. See, e.g., Ryan, 175 N.J. at 344. What is required is

"an examination of the entity seeking to clothe itself in the veil

of charitable immunity to discover its aims, its origins, and its

method of operation in order to determine whether its dominant

motive is charity or some other form of enterprise." Parker, 243

N.J. Super. at 325.

7

Courts in this State have similarly recognized that the CIA's

underlying public policy compels its liberal construction. See,

e.g., P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 148 (2008).

23 A-3060-15T3

To demonstrate a charitable purpose, a nonprofit entity must

show that its actions relieve the government of a burden it would

otherwise have to perform. Id. at 325–26. Additionally, although

a "percentage figure" does not "rigidly dictate the analysis[,]"

Estate of Komninos, 417 N.J. Super. at 324–25, a non-religious,

non-educational organization seeking to apply N.J.S.A. 2A:53A-7

must show some level of support from private donations and/or

trust funds. Bieker, 169 N.J. at 178. A reviewing court considers

the entity's "source of funds as a critical element" of its

analysis. Abdallah, 351 N.J. Super. at 284, 287–88.

In Tonelli, the Court reaffirmed that charitable immunity has

"no applicability to a governmental entity funded exclusively by

the public and rendering services to which citizens are entitled

as a matter of right." Tonelli, 185 N.J. at 440–41. Similarly,

the Court refused to extend the protections afforded by N.J.S.A.

2A:53A-7 to an entity acting as an instrumentality of the

government. Id. at 450.

To be clear, a nonprofit entity does not automatically alter

its status under the CIA when it receives public funds in any

amount. O'Connell, 171 N.J. at 495. In fact, we have held that

a nonprofit entity funded primarily through charitable donations

will not sacrifice its immune status by accepting "some" government

support. See Parker, 243 N.J. Super. at 327–28; see also Morales

24 A-3060-15T3

v. N.J. Acad. of Aquatic Sci., 302 N.J. Super. 50, 55 (App. Div.

1997) ("[T]he acceptance of government funds and some measure of

government control does not transform a private nonprofit

corporation into a governmental instrumentality."). The same is

true with respect to fundraising and profit-seeking endeavors.

Stated differently, "[a] qualifying organization does not lose its

statutory immunity merely because it charges money for its

services, unless it makes a profit or collects fees for services

totally unrelated to its organizational pursuits." Graber, 313

N.J. Super. at 482 (citations omitted).

Here, private charitable contributions accounted for

approximately 0.4 percent of Harvest of Hope's revenue for the

2001 tax-year, and 0.3 percent of the revenue for the 2002 tax-

year. During the same time periods, the State of New Jersey

provided Harvest of Hope with 94.7 percent and 99.6 percent of its

total revenue, respectively. Given this undisputed evidence, the

motion judge erred in concluding that Harvest of Hope was organized

exclusively for charitable purposes. In fact, it is clear that

the motion judge did not consider Harvest of Hope's "source of

funds," as required by Ryan, 175 N.J. at 346, and Abdallah, 351

N.J. Super. at 284.

Furthermore, nothing in the record suggests that Harvest of

Hope's actions relieved the State of a burden it would otherwise

25 A-3060-15T3

have to perform, as required by Parker, 243 N.J. Super. at 325–

26. Despite Harvest of Hope's contractual obligation to "conduct

monthly visitation" of Witt's foster home, the Division remained

obligated under N.J.S.A. 30:4C-25 to "regularly visit all children

under its care, custody, or guardianship[,]" and to assure

plaintiff "the maximum benefit from [its] services." It is clear

that Harvest of Hope "was not created to lessen the burden on

government but to obtain as much funding from the government as

possible and to operate [its program] [almost] exclusively with

that funding." Parker, 243 N.J. Super. at 326.

The record is clear that Harvest of Hope is not entitled to

charitable immunity under the CIA. We thus reverse the order of

the Law Division granting Harvest of Hope summary judgment and

dismissing plaintiff's complaint with prejudice, and remand this

matter for trial.

Reversed and remanded. We do not retain jurisdiction.

26 A-3060-15T3